93 Decision Citation: BVA 93-11291
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-20 919 ) DATE
)
)
)
THE ISSUE
Whether the regional office (RO), in promulgating the
November 7, 1968, rating decision, committed clear and
unmistakable error by granting service connection for
residuals of a gunshot wound of the left foot with
assignment of a 10 percent evaluation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) RO in Fort Harrison, Montana. The
veteran served on active duty from February 1967 to April
1968. In August 1992 the RO promulgated a rating decision
determining that it had not committed clear and unmistakable
error by granting service connection for residuals of a
gunshot wound of the left foot with assignment of a 10
percent evaluation. The notice of disagreement with the
above determination was received in August 1992. The
statement of the case was issued in September 1992. The
substantive appeal was received in September 1992. The case
was received and docketed at the Board in November 1992.
The representative, Disabled American Veterans, submitted
written arguments in December 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error when it
promulgated the November 7, 1968, rating decision. He
argues that the RO should have assigned a 20 percent
evaluation instead of a 10 percent evaluation for his
gunshot wound residuals of the left foot which involved a
through-and-through injury. He argues that under Diagnostic
Code 5310 of the VA Schedule for Rating Disabilities, a
20 percent evaluation is warranted for moderately severe
injury. He states that, considering the extent of damage to
the foot he sustained as a result of a gunshot wound, bone
fracture, prolonged infection, residual change in gait,
painful motion, and neurological deficiency, he should have
been granted a 20 percent evaluation for moderately severe
as opposed to moderate injury under Diagnostic Code 5310.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against a finding that the RO, in promulgating the
November 7, 1968, rating decision, committed clear and
unmistakable error by granting service connection for
residuals of a gunshot wound to the left foot with
assignment of a 10 percent evaluation.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. The service medical records show that in July 1967, the
veteran sustained a through-and-through gunshot wound of the
left foot which entered on the medial aspect of the left
foot and exited on the plantar aspect.
3. The November 7, 1968, rating decision wherein the RO
granted service connection for residuals of a gunshot wound
to the left foot with assignment of a 10 percent evaluation
constituted a reasonable exercise of rating judgment based
on the evidence then of record.
4. The veteran did not timely appeal the above
determination.
CONCLUSION OF LAW
The RO, in promulgating the November 7, 1968, rating
decision, wherein it granted entitlement to service
connection for residuals of a gunshot wound to the left foot
with assignment of a 10 percent evaluation, did not commit
clear and unmistakable error. 38 U.S.C.A. §§ 1155, 5107,
7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), Part 4, §
4.56, Diagnostic Code 5310 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have found that the veteran's claim is plausible and,
therefore, "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). We are satisfied that all relevant
facts have been properly developed, that the evidentiary
record is sufficiently complete, and that no further
assistance to the veteran is required in order to comply
with our duty to assist him in the development of facts
pertinent to his appeal. Sanders v. Derwinski,
1 Vet.App. 88 (1990); Murphy v. Derwinski, 1 Vet.App. 78
(1990); and Littke v. Derwinski, 1 Vet.App. 90 (1990).
It has been the veteran's contention that the RO committed
clear and unmistakable error when it promulgated the
November 7, 1968, rating decision by failing to assign a
20 percent evaluation for his gunshot wound residuals of the
left foot. He has argued that the above injury was a
through-and-through gunshot wound and that considering the
extent of damage caused by such wound and resultant
symptomatology, the RO should have construed his injury as
moderately severe in nature, thereby warranting assignment
of a 20 percent evaluation instead of the 10 percent
evaluation assigned for his wound.
We initially note that the unappealed rating decision of
November 7, 1968, is final in the absence of clear and
unmistakable error and would serve as a bar for assignment
of an increased evaluation of 20 percent for gunshot wound
residuals of the left foot. In determining whether there
was clear and unmistakable error in this decision, it is not
sufficient that we would have decided the case differently;
rather, it must be shown that there was no reasonable basis
for the conclusions reached in the decision. A review of
the service medical records discloses that, on July 5, 1967,
the veteran sustained a through-and-through gunshot wound of
the left foot while cleaning a rifle. The wound was
self-inflicted secondary to accidental discharge of the
rifle. He was privately hospitalized for initial care.
During his hospitalization, he underwent primary debridement
and irrigation of the wound under general anesthesia. The
entrance wound was on the medial aspect of the left foot and
the exit wound was on the plantar aspect. The entrance and
exit wounds were closed by delayed primary closure with
4-0 steel wire. A radiographic study of the left foot
revealed multiple sutures over the proximal portion of the
fifth metatarsal and cuboid bone. There was a fracture of
the midportion of the cuboid bone in satisfactory position
and several pieces of metallic fragments were seen in the
soft tissues of the volar aspect of the foot. Followup
X-rays revealed extensive demineralization with a healing of
the fractured cuboid. During the initial month of
hospitalization, his wounds were not healing satisfactorily
and continued to drain from an apparent sinus tract. During
the latter part of August, under spinal anesthesia, the
veteran underwent redebridement of the wound and sinus
tract. During the next month his wounds gradually healed by
secondary intention with gradually decreasing drainage.
Radiographic studies taken in October 1967 were not
diagnostic of osteomyelitis or a sequestra, but did indicate
marked osteoporosis. Towards mid-October, a walking splint
was applied and he gradually increased ambulation. By
October 23, drainage from the wound had apparently ceased.
His ambulation was gradually increased from a walking splint
to crutch-and-cane walking. Ultimately, the veteran was
able to walk with a cane with only mild discomfort. There
was nearly a full range of motion at the midtarsal level;
however, there was moderate pain with motion.
A VA examination subsequent to the veteran's separation from
active service was not conducted. The RO, on November 7,
1968, granted entitlement to service connection for
residuals of the gunshot wound to the left foot with
assignment of a 10 percent evaluation under Diagnostic
Code 5310. Under Diagnostic Code 5310, a 10 percent
evaluation contemplates moderate injury. The diagnostic
criteria also provide that a minimum evaluation of
10 percent is assigned for through-and-through wounds of the
foot. The next higher evaluation of 20 percent contemplates
moderately severe injury. It appears that the gunshot wound
of the left foot sustained by the veteran while on active
duty was essentially a soft tissue injury, though there was
fracture of the cuboid bone. Other diagnostic criteria to
be considered with respect to sustention of moderate injury
consist of a demonstration of a through-and-through or deep
penetrating wound of relatively short tract by a single
bullet or small shell or shrapnel fragment with absence of
explosive effect of high velocity missile and of residuals
of debridement or prolonged infection. The service medical
records are absent for evidence of prolonged infection due
to the gunshot wound of the left foot. The veteran was
hospitalized for treatment of his wound from July through
October in 1967. He did experience pain on use of his foot
and required a cane as an ambulatory aid to minimize his
symptomatology. 38 C.F.R. § 4.56 (1992).
It is our opinion that the gunshot wound sustained by the
veteran in active service did not result in moderately
severe disability of his left foot or damage to his foot
muscles. Other diagnostic criteria for moderately severe
injuries consist of a demonstration of a through-and through
or deep penetrating wound by a high velocity missile of
small size or large missile of low velocity with debridement
or prolonged infection or with sloughing of soft parts and
intermuscular cicatrization. There must be evidence of
unemployability because of inability to keep up with work
requirements. There was no evidence of unemployability of
the veteran as the result of his gunshot wound injury.
Other criteria included demonstration of entrance and (if
present) exit scars relatively large and so situated as to
indicate the tract of the missile wound toward muscle
groups. There must be indications on palpation of moderate
loss of deep fascia, or moderate loss of muscle substance or
moderate loss of normal firm resistance of muscles compared
with the sound side. Tests of strength and endurance of
muscle groups involved (compared with the sound side) must
give positive evidence of marked or moderately severe loss.
The above criteria were clearly not shown as a result of the
gunshot wound of the left foot. 38 C.F.R. § 4.56 (1992).
The November 7, 1968, rating decision wherein the RO granted
entitlement to service connection for residuals of a gunshot
wound to the left foot with assignment of a 10 percent
evaluation under Diagnostic Code 5310 did not constitute
clear and unmistakable error. Muscle Group X is the only
muscle shown to have been involved in the injury.
Considering the description of the injury and surgical
procedures as well as residual symptomatology reported in
the service medical records, we conclude that the veteran
sustained not more than moderate muscle damage or moderate
injury warranting no more than a 10 percent evaluation under
Diagnostic Code 5310 of the VA Schedule for Rating
Disabilities. 38 U.S.C.A. §§ 1155, 5107, 7105 (West 1991);
38 C.F.R. §§ 3.104(a), 3.105(a), Part 4, § 4.56, Diagnostic
Code 5310 (1992).
ORDER
A finding that the RO, in promulgating the November 7, 1968,
rating decision, whereby it granted entitlement to service
connection for residuals of a gunshot wound of the left foot
with assignment of a 10 percent evaluation, constituted
clear and unmistakable error, is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
(CONTINUED ON NEXT PAGE)
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.